5rP CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO. State of Ohio City of Bay Village, ex rel. RELATORS' MERIT BRIEF ^ ^

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1 IN THE SUPREME COURT OF OHIO State of Ohio City of Bay Village, ex rel. Committee for the Charter Amendment for an Elected Law Director Lucian A. Dade, Chairperson, et al Relators CASE NO ORIGINAL ACTION IN MANDAMUS EXPEDITED ELECTION CASE V. City of Bay Village et al Respondents RELATORS' MERIT BRIEF Gerald W. Phillips ( ) Phillips & Co., L.P.A. P.O. Box Windward Way Avon Lake, Ohio (440) Fax No. (440) Attorney for Relators ^ ^ 5rP CLERK OF COURT SUPREME COURT OF OHIO Stephen M. O'Bryan ( ) Counsel of Record Patrick J. Krebs ( ) Majeed G. Makhlouf ( ) Taft, Stettinius, & Hollister LLP 2000 Public Square Suite 3500 (216) Fax No. (216) sobryan@taftlaw.com pkrebs@taftlaw.com mmakhlouf@taftlaw.com Donald J. McTigue ( ) Mark A. McGinnis ( ) The McTigue Law Group 550 East Walnut St. Columbus, Ohio (614) Fax No. (614) mctiguelaw@rrohio.com Attorneys for Respondents

2 Table of Contents Statement of Case...1 Statement of Facts...3 Law and Argument Proposition of Law No. 1: The signature requirement for a city charter amendment is expressly provided by the Ohio Constitution Article XVIII, 9 and 14 which can not be altered or changed by a city charter provision, the Ohio Constitution provision, Article XVIII, 9 and 14 prevails since the "paramount authority" must prevail over the "subordinate authority" State ex rel Huebner v. West Jefferson Village Council (1996) 75 OS 3`d 381, Proposition of Law No. 2: A city charter provision which expressly incorporates by reference the Ohio Constitution provisions for the submission of a charter amendment, expressly incorporates the signature requirement for a charter amendment expressly provided by the Ohio Constitution Article 18, 9 and 14. Oppenheimer v. Madeira (1981) 10 App 3ra Proposition of Law No. 3: Under the Ohio Constitution the review of the sufficiency of a charter amendment petition is limited to solely administrative matters, as to form and the determination of the number of valid signatures. Morris v. Macedonia City Council ( OS 3' Proposition of Law No. 4: A charter amendment petition can be amended, corrected or added to prior to the filing of the charter amendment petition in the public office. State ex rel Beck v. Casey (1990) 51 OS 3`d Proposition of Law No. 5: The test to be used to detennine if corrections or changes to a charter amendment petition are not changes to the substantive nature and character of the issue presented by the charter amendment petition is an objective standard, would the "average elector" signing the charter amendment petition would have been mislead into signing the charter amendment petition as a result of the failure to make the corrections prior to the signing of the charter amendment petition. State ex rel Polcyn v. Burkhart (1973) 33 OS 2"d 7, Proposition of Law No. 6: The Committee designated for the circulation and filing of a charter amendment petition has express and implied authority to correct amend and to add to the charter amendment petitions to make changes for corrections and errors which do not change the substantive nature and character of the issue presented by the charter amendment petition prior to the filing of the charter amendment petition in public office. State ex rel Polcyn v. Burkhart (1973) 33 OS 2nd 7,

3 Proposition of Law No. 7: A committee can correct a typographical error a misspelling of a single word the use of the word "filing" instead of "filling" in the Charter Amendment Petition, since the change and correction does not change the substantive nature and character of the issue presented by the Charter Amendment Petition prior to the filing of the Charter Amendment in a public office. State ex rel Polcyn v. Burkhart (1973) 33 OS 2 d 7, Proposition of Law No. 8: The Committee can change a name of a committee member to his legal name and the address of a committee who has two residences to another residence address since these changes do not go to the substantive nature and character of the issue presented by the Charter Amendment Petition prior to the filing of the Charter Amendment Petition in a public office. State ex rel Polcyn v. Burkhart (1973) 33 OS 2"a 7, Proposition of Law No. 9: The Committee can make a correction to add a phrase regarding the admission and practice of law for the position of law director which was omitted on one part petition which does not change the substantive nature and character of the issue presented by the Charter Amendment Petition prior to the filing to the Charter Amendment Petition in a public office. State ex rel Polcyn v. Burkhart (1973) 33 OS 2"a 7, Proposition of Law No. 10: Misrepresentation and fraud in the contents and circulation of the Charter Amendment Petition does not invalidate the Charter Amendment Petition absence a systematic course of fraud and forgery in procuring and writing names thereon, and have willfully and intentionally sworn to false affidavits attached thereto. State ex rel Baur v. Medina Cty. Bd. ofelections (2000) 90 OS 3d 165, Proposition of Law No. 11: The sanctity of the constitutional right to petition one's government "core political speech" by means of a charter amendment process must be liberally construed to permit rather than to preclude the exercise of these constitutional rights State ex rel Rose v. Lorain County Board ofelection, (2000) 90 OS 3`d 229, Proposition of Law No. 12: Charter Amendments are not subject to the single subject rule, under the Ohio Constitution Article 18, 9. Reutener v. Cleveland (1923) 107 OS Proposition of Law No. 13: A charter amendment which provides for an elected law director in lieu of an appointed law director, and provides for the office of the position of law director, are rationally and practically related and constitutes one subject and does not constitute a manifest gross and fraudulent combination of different subjects. State ex rel Dix v. Celeste ( 1984) `d Proposition of Law No. 14: Relators who are taxpayers, electors, residents and citizens of Bay Village, a charter city have clear legal standing to maintain a common law taxpayer action, a complaint in mandamus to compel the Respondents, the City, its Clerk -ii-

4 and City Council to submit to the electorate, a proposed charter amendment. State ex rel Citizens for a Better Portsmouth v. Sydnor (1991) 61 OS 3`d 49, Proposition of Law No. 15: No security for costs need be given for a common law taxpayer action. State ex rel Citizensfor a Better Portsmouth v. Sydnor (1991) 61 OS 3`a 49, Proposition of Law No. 16: Relators who are taxpayers, electors, residents and citizens of Bay Village, a charter city, have clear legal standing under ORC as taxpayers to maintain a statutory taxpayer action under ORC , a complaint in mandamus to compel the Respondents City, its Clerk, and City Council to submit to the electorate a proposed charter amendment. State ex rel Nimon v. Village of Springdale (1966) 6 OS 2nd 1, Syllabus Proposition of Law No. 17: Relators who have paid the cash deposit set pursuant to Ohio Supreme Court Rule XV, 2 to provide security for costs in an original action, a statutory taxpayer mandamus action to compel the Respondent City, its Clerk, and City Council to submit to the electorate a proposed charter amendment, has satisfied the statutory requirement under ORC of providing security for costs. Ohio Supreme Court XV, Proposition of Law No. 18: Relators have brought forth a statutory taxpayer mandamus action pursuant to ORC thru , a complaint in mandamus to compel the Respondents City, its Clerk, and City Council to submit to the electorate a proposed a charter amendment. State ex rel Citizens for a Better Portsmouth v. Sydnor (1991) 61 OS 3`d Proposition of Law No. 19: The Committee for a proposed charter amendment has clear legal standing to maintain both a common law taxpayer action and a statutory taxpayer action under ORC thru , a complaint in mandamus to compel the Respondent, City, its Clerk, and City Council to submit to the electorate a proposed charter amendment. State ex rel Citizens for a Better Portsmouth v. Sydnor (1991) 61 OS 3rd 49, Proposition of Law No. 20: The designation of a Committee for the Circulation and filing of a charter amendment petition is purely discretionary, and there is no mandatory provision for the designation of a Committee for a charter amendment petition. State ex rel Durell v. Celebrezze Jr. (1979) 63 0 App 2"d 125, Proposition of Law No. 21: A member of the Connnittee responsible for the circulation and filing of a charter amendment petition is not required to be an elector and signer of the charter amendment petition. Buckley v. American Constitutional Law Foundation, Inc. (1999) 525 US 182, 142 LE 2"d 599, 119 S Ct Proposition of Law No. 22: A petitioner of a charter amendment petition includes a broad group of individuals and persons supportive of the filing and circulation of the charter -iii-

5 amendment petition, the Committee, its members, circulators, and electors who signed the charter amendment petitions. Blacks Law Dictionary 4" Ed...34 Proposition of Law No. 23: Relators have acted with extreme diligence and promptness when they filed their Verified Complaint in Mandamus on the second business day after the Respondents failed to enact and pass Ordinance No State ex rel Commt. For the Charter Amendment, City Trash Collection v. Westlake (2002) 97 OS 3rd Proposition of Law No. 24: Relators have properly brought an original action in mandamus in the name of the State of Ohio on their relation. Gannon v. Gallagher (1945) 145 OS Proposition of Law No. 25: The Complaint in Mandamus has been verified by an affidavit based upon the Relators' Counsel own personal knowledge and information pursuant to Ohio Supreme Court Rule X (4) (B), State ex rel Sekermestrovich v. City of Akron (2001) 90 OS 3`d Proposition of Law No. 26: The Relators have filed the Charter Amendment Petitions as one instrument with the Respondent Clerk. State ex rel Rose v. Lorain County Board of Election, (2000) 90 OS 3`d Proposition of Law No. 27: Relators having brought a mandamus action to place an item on the ballot for the benefit of public promoting and protecting "core political speech" are entitled to a recovery of attorney fees. State ex rel Commt. For the Charter Amendment, City Trash Collection v. Westlake (2002) 97 OS 3rd Proposition of Law No. 28: The Ohio Constitution imposes a mandatory duty upon the legislative authority of a charter city to forthwith submit the proposed charter amendment to the electors, forthwith meaning immediately. State ex rel Comm't for the Charter Amendment Petition v. Avon (1998) 81 OS 3rd 590, Proposition of Law No. 29: Relators have no clear adequate remedy in the ordinary course of the law to compel the Respondents to perform their mandatory duty enjoined by law, to submit the Charter Amendment Petitions to the Board of Elections and to have the Charter Amendment Petitions placed on the November 6, 2007 General Election Ballot, due to the fact that the herein action is an Expedited Election Case pursuant to Ohio Supreme Court Rule X, Section 9; State ex rel Thurn v. Cuyahoga Cty. Bd ofelections (1995) 72 OS 3`d 289, Proposition of Law No. 30: Relators have the clear legal right to have the Charter Amendment Petitions submitted to the Board of Elections and to have the Charter Amendment Petitions placed on the November 6, 2007 General Election Ballot since the Charter Amendment Petitions are legally valid and sufficient and contain 825 valid signatures of qualified electors in the City of Bay Village, more than the minimum number of 677, the requirement mandated by the Ohio Constitution Article 18, 9 and 14. State ex rel Commt. For the Charter Amendment, City Trash Collection v. Westlake (2002) 97 OS 3`d 100, iv-

6 Conclusion Proof of Service...45 Appendix...46

7 Table of Authorities Table of Cases Bazell v. Cincinnati (1968) 13 OS 2nd Buckeye Community Hope Found v. Cuyahoga Falls (1998) 82 OS 3`d Buckley v. American Constitutional Law Foundation, Inc. (1999) 525 US 182, 142 LE 2"a 599, 119 S Ct , 26, 33, 34, 38, 39 Fondessy Enterprises, Inc. v. Oregon (1986) 23 OS 3d Fox vs. Lakewood (1988) 39 OS 3rd Gannon v. Gallagher (1945) 145 OS , 36 In re L.M. Axle Co. CCA Ohio 3 F.2"d Logan v. Ohio Adult Parole Auth. (1998) 84 OS 3`d Lynch v. Bd. ofedn (1927) 116 OS Maloney v. Ct. of Common Pleas (1962) 173 OS Meyer v. Grant (1988) 486 US 414, 422, 100 LE 2"d 425, 108 S Ct , 26, 38 Monnette v. Malone (1979) 60 OS 2nd Morris v. Macedonia City Council ( OS 3rd , 15, 39, 40, 41 Olen Corp. v. Franklin Cty. Bd ofelections (1988) 43 0 App 3`a Oppenheimer v. Madeira ( 1981) 1 O App 3`d Ort v. Hutchinson (1961) 114 O App Pim v. Nicholson (1856) 6 OS Reutener v. Cleveland (1923) 107 OS State ex rel Baur v. Medina Cty. Bd. of Elections (2000) 90 OS 3`d State ex rel Beck v. Casey (1990) 51 OS 3 `d

8 State ex rel Citizensfor a Better Portsmouth v. Sydnor (1991) 61 OS 3`d , 15, 28, 29, 30, 32, 40, 41 State ex rel Columbia Reserve Ltd v. Lorain Cry. Bd. ofelections (2006) 111 OS 3`d State ex rel Commt. For the Charter Amendment, City Trash Collection v. Westlake (2002) 97 OS 3rd , 3, 11, 12, 13, 29, 30, 32, 34, 36, 38, 39, 42, 43, 44 State ex rel Comm't for the Charter Amendment Petition v. Avon (1998) 81 OS 3rd , 30, 32, 36, 39, 40, 41, 42, 44 State ex rel Commt. for the Proposed Ordinance to Repeal Ordinance No , West End Blight Designation v, Lakewood (2003) 100 OS 3`d State ex rel Commt for the Referendum of Lorain Ordinance No v. Lorain Cty. Bd. ofelections (2002) 96 OS 3`d State ex rel Committee for the Referendum of Ordinance No v. White (2000) 90 OS 3`d , 30, 32, 36, 39, 42 State ex rel Concerned Citizens for More Professional Gov't v. Zanesville City Council (1994) 70 OS 3`a , 40, 41 State ex rel Dix v. Celeste (1984) 11 OS 3`d State ex rel Durell v. Celebrezze Jr. (1979) 63 0 App 2nd State ex rel Fite v. Aeh (1997) 80 OS 3`d State ex rel Foreman v. Brown (1967) 10 OS 2nd State ex rel. Green v. Casey (1990) 51 OS 83, State ex rel Gongwer v. Graves (1914) 90 OS State ex rel Hackworth v. Hughes (2002) 97 OS 3`a State ex rel Hinchliffe v. Gibbons (1927) 116 OS , 11, 42, 43 State ex rel Huebner v. West Jefferson Village Council (1996) 75 OS 3`d , 8, 10, 11, 12, 13, 42, 43 State ex rel Jurcisin v. Cotner (1984) 10 OS 3`d , 41 State ex rel King v. Portsmouth (1986) 27 OS 3`d , 26

9 State ex rel Middletown Bd. ofedn. v. Butler Cty. Budget Comm. (1987) 31 OS 3`d State ex rel Moore v. Trustees of Weathersfield Township (1954) 161 OS State ex rel Nimon v. Village of Springdale (1966) 6 OS 2nd State ex rel Polcyn v. Burkhart (1973) 33 OS 2"d , 16, 17, 18, 19, 20, 21, 22, 23 State ex rel Rose v. Lorain County Board of Election, (2000) 90 OS 3" , 25, 26, 37, 38 State ex rel Sekermestrovich v. City ofakron (2001) 90 OS 3`d , 37 State ex rel Semik v. Cuyahoga Cty. Bd ofelections (1993) 67 OS 3`d , 11, 39, 42, 43 State ex rel Sharpe v. Hitt (1951) 155 OS , 26 State ex rel Shemo v. Mayfield Hts. (2001) 92 OS 3`d State ex rel Thurn v. Cuyahoga Cty. Bd of Elections (1995) 72 OS 3rd , 42, 44 Taft v. Cuyahoga Cty. Bd. of Elections (2006) 110 OS 3"d Trustees ofpraire Twp. v. Garver (1931) 410 App Village of Struthers v. Sokol (1923) 108 OS Walker v. Dillonvale (1910) 82 OS Statutes ORC ,45 ORC (A)...24 ORC ORC ORC ORC viii-

10 ORC (G)... 15, 19 ORC (H) ORC (I) ORC (I) (1) ORC (1) (B) (2)...19 ORC (K)...38 ORC ORC ORC (A) (1)...24 Ohio Constitution Article II, l f Article 2, Article 18, 8...1, 11, 12, 13, 39 Article 18, , 2, 3, 10, 11, 12, 13, 14, 26, 33, 39, 43, 45 Article 18, , 3, 8, 10, 11,12, 13, 14,43, 45 Ohio Supreme Court Rules Ohio Supreme Court Rule X (4) (B)...36 Ohio Supreme Court Rule X, Section , 44 Ohio Supreme Court XV, , 32 Other References Blacks Law Dictionary 4`h Ed....34

11 Statement of Case The herein action is both a common law taxpayer action and a statutory taxpayer action. The Relators have sought requested and demanded that a Peremptory Writ of Mandamus be granted compelling Respondents to submit the Charter Amendment Petitions to the Board of Elections and to have the Charter Amendment Petitions placed on the November 6, 2007 General Election Ballot. The Relators have also sought requested and demanded that a Peremptory Writ of Mandamus be granted compelling the Respondents to provide and give notice to the electorate within the City of Bay Village of the election for the Charter Amendment Petitions at the November 6, 2007 General Election pursuant to and in compliance with the Ohio Constitution Article 18, Section 8 and 9 or pursuant to Ohio Revised Code Section Relators request that Judgment in their favor on their Verified Complaint in Mandamus, costs of this proceeding, and reasonable attorney's fees be granted to them. The Relators are taxpayers, citizens, residents, and electors in the City of Bay Village. The Relators have placed a Taxpayers Demand upon the Respondents which has been rejected. This case involves basic fundamental constitutional rights. The constitutional right to petition one's government "core political speech" by means of a charter amendment process is a right of most "sacrosanet character" with deep roots in our state's history. State Ex Rel Rose v. Lorain County Bd. of Elections (2000) 90 OS 3rd 229. The public benefit of the sanctity of one's constitutional right to petition one's government for redress and one's freedom of speech is clearly without debate. Petition circulation such as referendum petitions have been held by the United States Supreme Court to be "core political speech" because it involves "interactive communication conceming political change." Meyer v. Grant (1988) 486 US 414, 422, 100 LE

12 2"d 425, 108 S Ct 1886, Buckley v. American Constitutional Law Foundation, Inc. (1999) 525 US 182, 142 LE 2nd 599, 119 S Ct 636. Relators have the clear legal right to have the Charter Amendment Petitions submitted to the Board of Elections and to have the Charter Amendment Petitions placed on the November 6, 2007 General Election Ballot since the Charter Amendment Petitions are legally valid and sufficient and contain 825 valid signatures of qualified electors in the City of Bay Village, more than the minimum number of 677, the requirement mandated by the Ohio Constitution Article 18, 9 and 14. State ex rel Commt. For the Charter Amendment, City Trash Collection v. Westlake (2002) 97 OS 3rd 100, 32. It is also the well settled and established law that when charter amendment provisions of a charter conflicts with the constitutional charter amendment provisions, the Constitution prevails because the "the paramount authority must prevail over the subordinate authority", State ex rel Commt. For the Charter Amendment, City Trash Collection v. Westlake (2002) 97 OS 3`d 100, 32, State ex rel Hinchliffe v. Gibbons (1927) 116 OS 390, 395, State ex rel Semik v. Cuyahoga Cty. Bd ofelections (1993) 67 OS 3rd 334, , State ex rel Huebner v. W. Jefferson Village Council (1996) 75 OS P 381, Pursuant to law the correct number of valid signature needed for the Charter Amendment Petitions is 677, 10% of the voters who voted in the last municipal election which would be November 8, 2005 (10% x 6,768), Ohio Constitution Article XVIII, 14, State ex rel Huebner v W. Jefferson Village Council (1996) 75 OS 3d 381, 384. Thus, Relators have the clear legal right to have the Charter Amendment Petitions submitted to the Board of Elections and to have the Charter Amendment Petitions placed on the November 6, 2007 General Election Ballot since the Charter Amendment Petitions are legally valid and sufficient and contain 825 valid signatures of qualified electors in the City

13 of Bay Village, more than the minimum number of 677, the requirement mandated by the Ohio Constitution Article 18, 9 and 14. State ex rel Commt. For the Charter Amendment, City Trash Collection v. Westlake (2002) 97 OS 3`d 100, 32 (holding that the Ohio Constitution provision Article 18, 9 and 14 prevails over any contrary city charter provision) Statement of Facts 1. Relator the Committee for the Charter Amendment for an Elected Law Director, is the duly authorized committee designated for the Charter Amendment Petitions (hereinafter referred to as the "Committee") (Complaint 1); 2. Relator, the Committee, is composed of the following taxpayers, residents, and members: Relators, Lucian A. Dade, Chairperson, Karen Dade, and Eric Hansen (Complaint 2); 3. Relator Lucian A. Dade is also commonly known in the residential and business community as Alex Dade (Complaint 3); 4. Relator Eric Hansen also owns a personal residential dwelling at 600 Bradley Rd. Bay Village, Ohio 44140, in addition to his residence at 30401Ednil Dr., Bay Village, Ohio (Complaint 4); 5. Respondent Joan T. Kemper is the Clerk of Council for the City of Bay Village (hereinafter referred to as "Clerk") (Complaint 5); 6. Respondent City of Bay Village is a charter municipality in the State of Ohio (hereinafter referred to as the "City") (Complaint 6); 7. Respondent City of Bay Village's legislative authority or body is its City Council, composed of seven members, Brian A. Cruse its President, Paul A. Koomar, Donald L Zimmerman, Mark E. Barbour, James R. Scott, Scott A. Pohlkamp, and Michael A. Young (hereinafter referred to as "City Council") (Complaint 7);

14 8. On August 29, 2007 the Committee filed with the Clerk, forty six (46) Part Petitions containing 907 signatures for an amendment to the City Charter of the City of Bay Village, Proposed Charter Amendment: A Proposed Charter Amendment to provide for the election of the Director of Law by the electorate and to provide for the office of the Director of Law by amending Sections 4.2, 4.3, and 11.2 of Bay Village City Charter ("Charter Amendment Petitions") as one ( 1) instrument, a true and accurate copy of the receipt for the Charter Amendment Petitions is attached hereto and made a part hereof as Exhibit A(Complaint 10); 9. On August 29, 2007 the Committee by and through its Counsel filed with the Clerk a memorandum of law stating the number of signatures needed for the Charter Amendment Petitions, the constitutional duty to "forthwith" submit the Charter Amendment Petitions to the electorate at the November 6, 2007 General Election, that time was of the essence, and case law and authority to assist the Respondents in the performance of their constitutional duty with respect to the Charter Amendment Petitions to "forthwith" submit them to the electorate at the November 6, 2007 General Election, a true and accurate copy of the memorandum of law is attached hereto and made a part hereof as Exhibit B (Complaint 11); 10. On August 29, 2007 the Respondent City Council by its President Brian A. Cruse wrote a cover letter to the Cuyahoga County Board of Elections ("Board of Elections") which was delivered to the Board of Elections with the Charter Amendment Petitions on August 30, 2007, a true and accurate copy of the letter is attached hereto and made a part hereof as Exhibit C ("Submission Letter") (Complaint 12); 11. On August 30, 2007 the Clerk delivered the Charter Amendment Petitions and the Submission Letter to the Board of Elections, a true and accurate copy of the receipt for these documents is attached hereto and made a part hereof as Exhibit D (Complaint 13);

15 12. On August 30, 2007 and August 31, 2007 the Board of Elections checked and verified the signatures on the Charter Amendment Petitions and determined that there were 825 valid signatures of duly registered voters in the City of Bay Village on the Charter Amendment Petitions and that 677 valid signatures were needed for the Charter Amendment Petitions, a true and accurate copy of the Board of Elections Signature Verification Statement is attached hereto and made a part hereof as Exhibit E (Complaint 14); 13. On August 31, 2007 the Board of Elections informed the Respondents that the Board of Elections had finished its verification of signatures on the Charter Amendment Petitions and that the Board of Elections Signature Verification Statement and Charter Amendment Petitions were available for pick up, and the Clerk did pick up the Board of Elections Signature Verification Statement and Charter Amendment Petitions on August 31, 2007 as is evidenced by Exhibit D (Complaint 1[ 15); 14. Upon receipt of the Board of Elections Signature Verification Statement and Charter Amendment Petitions on August 31, 2007 the Respondent City Council by its President Brian A. Cruse contested the signature requirement of 677 and asked the Board of Elections to provide him with the number of registered voters in the City of Bay Village, and the Board of Elections responded and provided the Respondent City Council President Brian A. Cruse with a response, and a true and accurate copy of the response is attached hereto and made a part hereof as Exhibit F (Complaint 16); 15. The Respondents in response to the Relators filing of the Charter Amendment Petitions and the signature verification by the Board of Elections scheduled a special council meeting for September 6, 2007 at 6:30 P.M. to consider the Charter Amendment Petitions and their validity and sufficiency and certification and submission to the Board of Elections, but did

16 not send or give the Relators Counsel any written notice of the special council meeting (Complaint 17); 16. The Respondents did not inform or notify the Relators that they were challenging and contesting the signature requirement for the Charter Amendment Petitions or their validity or sufficiency (Complaint 18); 17. The Relators after extensive research and investigation discovered that the Respondents were challenging and contesting the signature requirement for the Charter Amendment Petitions, and they innnediately prepared and submitted a letter informing the Respondents of their clear error of law and demanding and requesting the performance of their mandatory duty enjoined by law to submit the Charter Amendment Petitions to the electorate at the November 6, 2007 General Election, a true and accurate copy of their letter is attached hereto and made a part hereof as Exhibit G, ("Taxpayers Demand Letter") (Complaint 19); 18. The Relators provided the Clerk with copies of the Taxpayers Demand Letter for herself and for all members of Respondent City Council, and a true and accurate copy of the letter providing these copies is attached hereto and made a part hereof as Exhibit H (Complaint 20); 19. The Respondent City's Law Director Gary A. Ebert retained the services of outside counsel Stephen M. O'Bryan from the law firm of Taft, Stettinius & Hollister to respond and advise Respondent City Council with respect to the Charter Amendment Petitions and the Taxpayers Demand Letter (Complaint 21); 20. On September 6, 2007, the Respondent City Council held its special city council meeting at 6:30 P.M. to consider the Charter Amendment Petitions and their validity and sufficiency and certification and submission to the Board of Elections (Complaint 22);

17 21. The Respondents prepared an agenda for the special council meeting for September 6, 2007 which included a proposed ordinance to submit to the electorate a proposed charter amendment identical to the Charter Amendment Petitions which was distributed to the public and to the Relators for the first time at the special council meeting, a true and accurate copy of the agenda including the proposed ordinance is attached hereto and made a part hereof as Exhibit I (Complaint 23); 22. At the September 6, 2007 special city council meeting the outside counsel of the Respondents Stephen M. O'Bryan retained by the Respondent City's Law Director Gary A. Ebert rejected the Relators Taxpayers Demand Letter (Complaint 24); 23. At the September 6, 2007 special city council meeting, the proposed ordinance to submit to the electorate a proposed charter amendment identical to the Charter Amendment Petitions, Ordinance No was defeated by a vote of two (2) yeas, four (nays) and one (1) absent member after considering the advice consultation and opinions of the outside counsel of the Respondents Stephen O'Bryan retained by the Respondent City's Law Director Gary A. Ebert, a true and accurate copy of Ordinance No and the vote upon Ordinance No is attached hereto and made a part hereof as Exhibit J (Complaint 25); 24. The Respondent informed the Board of Elections of the vote on Ordinance No on September 7, 2007, a true and accurate copy of the transmittal and receipt is attached hereto and made a part hereof as Exhibit K (Complaint 26); 25. The Respondents determination of the number of valid signatures needed for the Charter Amendment Petitions 1,444 is based upon the Bay Village City Charter, Section 13.5, a true and accurate copy of this section is attached hereto and made a part hereof as Exhibit L (Complaint 28);

18 26. Pursuant to law the correct number of valid signature needed for the Charter Amendment Petitions is 677, 10% of the voters who voted in the last municipal election which would be November 8, 2005 (10% x 6,768), Ohio Constitution Article XVIII, 14, State ex rel Huebner v W. Jefferson Village Council (1996) 75 OS 3`d 381, 384 (Complaint 30); 27. The Charter Amendment Petitions are valid and sufficient since they have 825 valid signatures on them (Complaint 31); 28. The Charter Amendment Petitions contain only one subject as evidenced by the title for the Charter Amendment Petitions: A Proposed Charter Amendment to provide for the election of the Director of Law by the electorate and to provide for the office of the Director of Law by amending Sections 4.2, 4.3, and 11.2 of Bay Village City Charter (Complaint 33) ; 29. Pursuant to law any alterations corrections or additions to the Charter Amendment Petitions were made to them prior to the filing of the Charter Amendment Petitions with the Clerk (Complaint 37); 30. Pursuant to law the Committee corrected a typographical error on the Charter Amendment Petitions in Section 4.2 of the proposed Charter Amendment by replacing the word "filing" with the correct word "filling" on all of the Charter Amendment Petitions prior to filing the Charter Amendment Petitions with the Clerk on August 29, 2007 ("Typographical Error") as evidenced by the receipt for the Charter Amendment Petitions, Exhibit A, a true and accurate copy of the Typographical Error is evidenced by a true and accurate copy of one of the part petitions, Part Petition No.1, Exhibit M(Complaint 38); 31. Pursuant to law the Committee corrected two (2) clerical errors on four (4) part petitions of the Charter Amendment Petitions, Part Petition No. 12, 13, 23, and 24, for the Committee members, to change name of Alex Dade, his conunonly used name in the business

19 and residential connnunity, to his legal name Lucian A. Dade, and to change the address of Eric Hansen from his residence address of 600 Bradley Rd. Bay Village, Ohio to his primary residence address of Ednil Dr. Bay Village, Ohio prior to the filing of the Charter Amendment Petitions with the Clerk on August 29, 2007 ("Committee Clerical Error") as evidenced by the receipt for the Charter Amendment Petitions, Exhibit A (Complaint 39); 32. The four (4) part petitions with the Committee Clerical Error contained 73 gross signatures, and 67 valid signatures, true and accurate copies of the four (4) part petitions, Part Petition No. 12, 13, 23, and 24, are attached hereto and made a part hereof as Exhibit N-1 thru N-4 (Complaint 40); 33. The four (4) part petitions with the Committee Clerical Error, Exhibit N-1 thru N-4, had page numbers on them, all of the rest of the part petitions did not have page numbers on them, therefore the Respondent determined that there were not uniform (Complaint 42); 34. On August 29, 2007 pursuant to law the Committee filed with the Clerk the Charter Amendment Petitions as one (1) instrument, as evidenced by Exhibit A (Complaint 43); 35. The substantive content and form of the Charter Amendment Petitions were all uniform and identical as evidenced by Exhibit M and Exhibits N-1 thru N-4, when the Charter Amendment Petitions were filed with the Clerk on August 29, 2007 as evidenced by Exhibit A (Complaint 44); 36. There was no fraud or misrepresentation in the circulation of the Charter Amendment Petitions (Complaint 50); 37. There will be a nominal cost to the City of Bay Village to submit the Charter Amendment Petitions to the electors at the November 6, 2007 General Election since elections will already be held in the City of Bay Village. A cost of a special municipal election other than

20 at the November 6, 2007 General Election will result in substantial additional cost and expense to the City of Bay Village (Complaint 56); 38. The last day to submit the Charter Amendment Petitions to the Board of Elections in order to be placed on the November 6, 2007 General Election is September 7, 2007 (Complaint 57); 39. On August 29, 2007 I personally on behalf of the Committee filed with the Clerk, forty six (46) Part Petitions containing 907 signatures for an amendment to the City Charter of the City of Bay Village, Proposed Charter Amendment: A Proposed Charter Amendment to provide for the election of the Director of Law by the electorate and to provide for the office of the Director of Law by amending Sections 4.2, 4.3, and 11.2 of Bay Village City Charter ("Charter Amendment Petitions") each part petition consisted of two (2) pages with three (3) sides of printed material the first page had printed material on the front and back and each part petition were affixed together and stapled together as one (I) part petition, all forty-six (46) part petitions were bound together with one (1) large binder as one (1) instrument, as evidenced by Exhibit A attached to the Complaint (Phillips Aff d 46, Complaint 10, Exhibit A, K. Dade Aff d 28) Law and Argument Proposition of Law No. 1: The signature requirement for a city charter amendment is expressly provided by the Ohio Constitution Article XVIII, 9 and 14 which can not be altered or changed by a city charter provision, the Ohio Constitution provision, Article XVIII, 9 and 14 prevails since the "paramount authority" must prevail over the "subordinate authority" State ex rel Huebner v. West Jefferson Village Council (1996) 75 OS 3rd 381, 383. The Ohio Constitution, Article XVIII, 14 provides in clear and express terms for the number of signatures needed for a charter amendment petition. In pertinent part Article XVIII, 14 provides as follows: "The percentage of electors required to sign any petition provided

21 for herein shall be based upon the total vote cast at the last preceding general municipal election". Based upon these clear and express terms, the last general municipal election would be November 8, 2005 as Relators argue. This has been applied with respect to charter amendment petitions under the Ohio Constitution, Article XVIII, 9. State ex rel Huebner v. West Jefferson Village Council (1996) 75 OS 3`d 381, 383, State ex rel Commt. for Charter Amendment, City Trash Collection v. Westlake (2002) 97 OS 3`d 100. The law is well established law that the home rule powers under the Ohio Constitution can not as a subordinate authority conflict with a higher authority, the Ohio Constitution. Buckeye Community Hope Found. v. Cuyahoga Falls (1998) 82 OS 3`a 59 (holding that a municipality can not through the exercise of its home rule powers subject to the referendum vote of its electors matters which are administrative, since this would conflict with the limitations provided in Article II, 1 f of the Ohio Constitution limiting the right of referendum to legislative matters). Bazell v. Cincinnati (1968) 13 OS 2nd 63. This well established principle of law has routinely been applied with respect to charter amendment petitions and its procedures. State ex rel Semik v. Cuyahoga Cty. Bd. ofelections (1993) 67 OS 3`d 334, 335 (holding that the submission of a proposed charter amendment at the next regular municipal election not less than 60 days and no more than 120 days from its submission, and if no such regular municipal election occurs within such time periods then at a special municipal election within said time periods as provided by the Ohio Constitution Article XVIII, 8 and 9 controls over city charter provisions), State ex rel Hinchliffe v. Gibbons (1927) 116 OS 390, 395 (holding that the requirement of filing of the charter amendment petitions with the legislative authority as provided by the Ohio Constitution could not be altered by a city charter provision requiring the filing with the Board of Elections). The Ohio Constitution, Article XVIII, 14 provides for the

22 number of signatures needed for a charter amendment petition. In pertinent part Article XVIII, 14 provides as follows: "The percentage of electors required to sign any petition provided for herein shall be based upon the total vote cast at the last preceding general municipal election". This has been applied with respect to charter amendment petitions under the Ohio Constitution, Article XVIII, 9. State ex rel Huebner v. West Jefferson Village Council (1996) 75 OS 3`d 381, 383 (holding that the Ohio Constitution provision Article XVIII, 14 controls over a conflicting charter provision which provides for a different manner and procedure for computing the number of signatures needed on a charter amendment petition) The Ohio Constitution Article XVIII, 8, 9, and 14 expressly provides for a procedure for the amendment of a city charter, and a municipal charter can not be construed so as to override guaranteed rights to the citizens of Ohio by the Ohio Constitution, a subordinate authority must always yield to a contrary paramount higher authority. State ex rel Huebner v. West Jefferson Village Council (1996) 75 OS 3`d 381, 383, State ex rel Commt. for Charter Amendment, City Trash Collection v. Westlake (2002) 97 OS 3`d 100. Respondents contention is the 1,444 valid signatures are needed, 10% of the registered electors pursuant to Respondent City Charter, Section This computation would result in a direct conflict since the city charter provision would provide for a different method and basis for computing the number of signatures needed on a charter amendment petition than is expressly required by the Ohio Constitution, Article 18, 14. Fondessy Enterprises, Inc. v. Oregon (1986) 23 OS 3`d 213, Village ofstruthers v. Sokol (1923) 108 OS 263. T'he Ohio Constitution, Article 18, 14 prevails over the Respondent City's Charter Section 13.5 since the paramount authority" must prevail over the "subordinate authority",state ex rel Huebner v. West Jefferson Village Council (1996) 75 OS 3`d 381, 383, State ex rel Commt. for Charter

23 Amendment, City Trash Collection v. Westlake (2002) 97 OS 3`d 100. Proposition of Law No. 2: A city charter provision which expressly incorporates by reference the Ohio Constitution provisions for the submission of a charter amendment, expressly incorporates the signature requirement for a charter amendment expressly provided by the Ohio Constitution Article 18, 9 and 14. Oppenheimer v. Madeira (1981) 10 App 3`d 44, Syllabus 1 The Respondent City Charter Section 13.5 expressly incorporates by reference the Ohio Constitution provisions for the submission of a charter amendment. In pertinent part this section expressly states as follows: "The submission of any proposed amendment to the electors shall be governed by the requirements of the Constitution of Ohio, and to such extent as said Constitution shall fail to provide therefor, the Council shall detennine the manner of such submission. As is clearly shown and expressly stated by Section 13.5, the Ohio Constitution requirements and provisions for a charter amendment including the signature requirement under the Ohio Constitution Article 18, 9 and 14 has been expressly adopting and incorporated by reference as part of the Respondent City Charter. Provisions of the Ohio Constitution governing charter amendments can be expressly incorporated into a city charter provision governing charter amendments. Oppenheimer v. Madeira (1981) 10 App 3`d 44, Syllabus 1 ("Section 8, Article XVIII of the Ohio Constitution, is incorporated into the amendment provisions of the charter of a municipal corporation by a provision that "copies of * * * amendments [to the charter] shall be mailed to the electors as required in the case of the original charter") The number of signatures needed for a charter amendment would be 10% of the number of voters who voted in the last municipal election. State ex rel Huebner v. West Jefferson Village Council (1996) 75 OS 3" 381, 383, Ohio Constitution Article 18, 9 and 14, State ex rel Commt. for Charter Amendment, City Trash Collection v. Westlake (2002) 97 OS 3`d 100 (any conflict is construe to reconcile it to the Ohio Constitution provisions, Article 18, 9 and 14).

24 Proposition of Law No. 3: Under the Ohio Constitution the review of the sufficiency of a charter amendment petition is limited to solely administrative matters, as to form and the determination of the number of valid signatures. Morris v. Macedonia City Council ( OS 3'd 52. It is the well established law in the State of Ohio, that the legislative authority of a charter city has limited authority to review the sufficiency of the charter amendment petitions. This limited authority to review the sufficiency of the charter amendment petitions, is limited solely to administrative matters as to form and the detennination of the number of valid signatures Morris v. Macedonia City Council (1994) 71 OS 3`d 52., 55 (holding that council's power to determine petitions for sufficiency does not extend beyond matters of form or administrative determinations concerning the number of valid signatures). The power to determine what substantive errors, if any, are grave enough to warrant the withdrawal of a whole issue from the electorate, whether they appear on the face of the petitions or not, is ajudicial function. Ohio Constitution Article XVIII, 9 does not contemplate nor vest such power in legislative authorities. State ex rel Polcyn v. Burkhart (1993) 33 OS 2"d 7, 10-11, State ex rel Citizens for a Better Portsmouth v. Sydnor (1991) 61 OS 3`d 49, 52, Morris v. Macedonia City Council (1994) 71 OS 3`d 52., 55. Under this limited authority a legislative body has no authority to refuse to place the Charter Amendment Petitions on the ballot because some future challenge to the number of valid signatures, or upon additional extrinsic evidence or investigations regarding any correction to the Charter Amendment Petitions made prior to its filing with the public office. It is the well established law that the legislative authority has absolutely no power to determine what substantive errors, if any, are grave enough to warrant the withdrawal of a whole issue from the electorate, whether they appear on the face of the petitions or not, is a judicial function. Ohio Constitution Article XVIII, 9 does not contemplate nor vest such power in legislative authorities. State ex rel Polcyn v. Burkhart (1993) 33 OS 2 "d 7, 10-11, State ex rel Citizens for a

25 Better Portsmouth v. Sydnor (1991) 61 OS 3d 49, 52, Morris v. Macedonia City Council (1994) 71 OS 3rd 52., 55. In the present case, there was no need to determine the number of valid signatures on the Charter Amendment Petitions this had already been done. There is no dispute that the number of valid signatures has been determined, 825 valid signatures. (See Exhibit E). The number of valid signatures needed based upon the Ohio Constitution Article XVIII, 8, 9, and 14 is 677 valid signatures, 10% of the number of votes cast at the last regular municipal election, the November 8, 2005 general election. (See Exhibit CC-1, CC-2, CC-3, E). The Respondents as of August 31, 2007 had taken the position that the number of valid signatures needed was 10% of the registered electors, 1,444 (10% x 14,440). The Respondent did not enact and pass Ordinance No at the September 6, 2007 special council meeting because of legal advice that the basis for determining the minimum number of signatures needed for the Charter Amendment Petitions was the number of registered electors. No additional time was needed to determine the sufficiency of the Charter Amendment Petitions based upon the number of valid signatures. Any contentions by the Respondents is nothing more than a smoke screen to camouflage the true reason of the failure to submit the Charter Amendment Petitions, which is to stonewall the residents right to vote. The Respondents had already completed their limited review, and nothing additional needed to be undertaken. Respondents had only to forthwith to act, and submit the Charter Amendment Petitions to the Cuyahoga County Board of Elections to be placed on the November 6, 2007 general election ballot. Proposition of Law No. 4: A charter amendment petition can be amended, corrected or added to prior to the filing of the charter amendment petition in the public office. State ex rel Beck v. Casey (1990) 51 OS 3`d 79, 82

26 The election laws only prohibit the alterations, corrections, or additions to a petition after it is filed in a public office. ORC (I) (1). The elections law even acknowledge that alterations, corrections or additions to a petition may be made prior to filing the petition in a public office. A circulator may before filing a petition in a public office strike from it any signature the circulator does not wish to present as a part of the petition. ORC (G) A signer of a petition may remove his signature from a petition at any time before the petition is filed in a public office. ORC (H). State ex rel Fite v. Aeh (1997) 80 OS 3`d 1(holding that R.C (H) and (I) prohibit the removal of signatures from petitions after they are filed in any public office) The fact that the election laws only prohibited alterations, corrections or additions to a petition after it is filed in a public office clearly implies and permits alterations corrections or additions before a petition is filed in a public office. State ex rel Beck v. Casey (1990) 51 OS 3rd 79, 82 ("We note that R.C (I) prohibits alterations to a petition after it is publicly filed. This implies some alterations may be permitted before filing"), State ex rel. Green v. Casey (1990) 51 OS 83, 85 ("However, by providing that no *** corrections *** may be made to a petition after it is filed in a public office, R.C (I) implies that some corrections are permitted beforehand"). Thus, a charter amendment petition can be amended, corrected or added to prior to the filing of the charter amendment petition in the public office. Proposition of Law No. 5: The test to be used to determine if corrections or changes to a charter amendment petition are not changes to the substantive nature and character of the issue presented by the charter amendment petition is an objective standard, would the "average elector" signing the charter amendment petition would have been mislead into signing the charter amendment petition as a result of the failure to make the corrections prior to the signing of the charter amendment petition. State ex rel Polcyn v. Burkhart (1973) 33OS2nd7,11. The standard used to test whether one would have been misled into signing a petition is an objective standard not a subjective standard, it is based on the "average citizen, voter, or

27 elector". Olen Corp. v. Franklin Cty. Bd of Elections (1988) 43 0 App 3d 189, 193 ("However, the test to be applied is an objective test, not a subjective test. The determination of whether the statute has been complied with is to be made from the petition itself, coupled with evidence of the actual existing circumstances, rather than the testimony of witnesses as to their personal beliefs about the petition or its effect as to themselves or their acquaintances. Application of the subjective test, apparently utilized by the trial court, would require calling every Brown Township elector as a witness before it could be determined that no one was misled. The issue, however, is not whether someone was in fact misled, but rather whether the language itself coupled with the actual existing circumstances is misleading to the average voter utilizing an objective standard"). The Ohio Supreme Court has adopted and approved the objective test. State ex rel Columbia Reserve Ltd. v. Lorain Cly. Bd of Elections (2006) 111 OS 3`d 167, 173, 34 (holding that the test is an objective rather than a subjective test, adopting the rationale of the Olen Corp. v. Franklin Cty. Bd. of Elections (1988) 43 0 App 3`d 189). The standard to be applied is whether the corrections or changes in the descriptive language of the charter amendment petition does cause the average citizen voter or elector to be misled into signing the charter amendment petition because the substantive nature and character of the question or issue to be presented by the petition without the corrections and changes does not fairly and accurately present such question and issue. State ex rel Polcyn v. Burkhart (1973) 33 OS 2nd 7, 11. (applying this objective test to errors in a charter amendment petition). A number of errors existed in the charter amendment petition for a charter amendment for a change in the structure of city council in that case. Careful scrutiny revealed that the petition contained a number of errors in the metes and bounds descriptions of the proposed districts. Specifically, 57.5 uninhabited acres, which were outside the limits of the city of Toledo, were improperly